2016 Dangerous Goods Symposium

Transcription

1 2016 Dangerous Goods Symposium PROBLEMS IN SEARCH OF SOLUTIONS; SOLUTIONS IN SEARCH OF PROBLEMS SEPTEMBER 8, 2016 CHICAGO, ILLINOIS 2016 JERRY W. COX, ESQ., ALL RIGHTS RESERVED

2 PART I REAL Hazardous Materials Problems

3 REAL Problems Deadly train derailments + Oil-by-rail (Lac Mégantic, Lynchburg) + Deadly chemicals (Graniteville, SC) Deadly pipeline leaks, fires and explosions + San Bruno, CA, gas pipeline + Crude oil leaks Industrial accidents + West, Texas + Tianjin, China

4 Lac Mégantic, Quebec (2013)

5 Lac Mégantic Statistics 4,701-foot long train w/one engineer 72 DOT-111s w/30,000 gals. of crude oil EACH Runaway train; derailed downtown 47 killed 36 buildings destroyed Insufficient insurance, so railroad bankrupt Victims compensation fund, $450 million (4,000 claimants)

6 Lessons of Lac Mégantic Causes: (1) defective locomotive; (2) poor maintenance; (3) driver error; (4) flawed operating procedures; (5) weak regulatory oversight; & (6) lack of safety redundancy In other words, parked on a main line on a hill w/o setting the brakes properly No tank car design could survive such a crash Main lesson: You can t cure stupid!

7 Lynchburg, VA (2014)

8 Lynchburg Statistics Train carrying crude oil going 24 mph in a 25 mph Derailment & explosion, but just happened to fall into the river instead of downtown Broken rail discovered day before; repair scheduled 3 weeks later Took CSX more than 2 hours to arrive & provide useful information to emergency responders Civil penalty: $361,000

9 Knee-Jerk Regulatory Reactions Emergency orders. New sampling & testing requirement Eventual demise of the DOT-111 tank car

10 San Bruno, CA (2013)

11 San Bruno Statistics Natural gas pipeline subject to federal regulations but supposedly enforced by state regulators DOT OIG: PHMSA/OPS State Pipeline Safety ManagementProgram is essentially useless; safety regulations were NOT enforced 8 dead; 58 others horribly burned; 38 homes destroyed Almost 4,000 violations of state & federal laws State penalties: $2.2 billion Convicted of criminal violations (8-9-16)

12 West, TX, Accident? (2013)

13 West, TX, Explosion Statistics 15 killed (incl. 12 first responders); 200 injured 500 homes destroyed 93-foot crater Ammonium nitrate & anhydrous ammonia PHMSA inspected & fined the company in 2012 $1 million insurance coverage, but TX required $0 Arson? Loading/unloading? Explosives transported there.

14 Tianjin, China (2015)

15 Tianjin Statistics 173 dead 304 buildings damaged 12,428 cars destroyed $1,100,000,000 economic losses

16 KILLER HAZMAT GASOLINE & DIESEL FUEL CHLORINE PROPYLENE/PROPANE FIREWORKS LIQUEFIED PETROLEUM GAS SULFURIC/HYDROCHLORIC ACID ANHYDROUS AMMONIA CARBON DIOXIDE (LIQUEFIED) SODIUM HYDROXIDE

17 PART II Solutions in Search of Problems

18 PHONY PROBLEMS Sampling & testing for crude oil by truck UN certification of non-bulk industrial packaging Fitness determinations for special permits & approvals Penny-ante, gotcha enforcement actions

19 Fitness Determinations Screened out exactly zero unfit applicants Never intended to be a requirement Adopted without rulemaking or industry input

20 Enforcement Procedures Agency-by-agency procedures & terminology + Notice of Probable Violation + Notice of Proposed Civil Penalty + FAA Rules of Practice + Federal Rules of Civil Procedure & Federal Rules of Evidence Administrative Procedure Act & Generic Statutes Administrative Law Judge (hearing examiner) procedures Appeals

21 Enforcement Abuses Abusive, unannounced inspections Exit briefing reports as confessions Other, new standard forms as confessions Refusal to explain allegations in exit reports Agency attorneys rubber-stamp investigators reports - allege violations of non-existent regulations involving non-existent products by investigators who were never present False enforcement action reports Industry needs to plan ahead!

22 The Big Issue: Strict Liability vs. Negligence Opposing arguments Statutory Language + Civil penalties + Criminal penalties Legislative History FAA Position

23 More Details

24 2050 Jamieson Ave., Suite 1212 Alexandria, VA Tel.:

25 Jerry Cox Bio Jerry W. Cox, Esq. Jerry Cox practices law and provides public affairs services in Washington, DC. His practice focuses on consumer protection, energy & transportation safety & security. He defends companies in litigation involving the Department of Energy, the NTSB & all Department of Transportation modal administrations. Cox also handles accident investigations. As Legislative Counsel to U.S. Sen. John C. Danforth (R-MO), Jerry developed expertise in aerospace, transportation safety & consumer protection. He later co-authored the brief for the independent insurers in the case that led to the installation of airbags in automobiles. He is the author of Transportation of Hazardous Materials in Plain English Packaging, the first practical guide to the regulations governing the shipment of hazardous materials. His commentaries on transportation safety & defense policy have appeared in several global publications. Jerry graduated cum laude from the Woodrow Wilson School of Public & International Affairs at Princeton & earned his law degree at the University of Virginia. Has been admitted to practice before the U.S. Supreme Court & in several states.

26 Disclaimer Nothing in this presentation, oral or written, may be taken as the provision of legal advice or the creation of an attorney-client or other business or professional relationship. The opinions expressed are solely the presenter s and do not necessarily reflect the opinions of the event organizer or client or organization the presenter may represent or with which he may be associated.